DIVORCE / DISSOLUTION OF MARRIAGE
California Divorce
A divorce in California is now referred to as a dissolution of marriage proceeding. In California, divorces are common. They can also seem daunting as California is a community property state and the longer parties have been married the more typical it is that their lives and property become intertwined. California is also a no-fault divorce state, meaning that very little consideration is given by the court to the circumstances behind the breakdown of the marriage. This is great news for an unfaithful spouse, but much less comforting to a devoted spouse who worked hard throughout the marriage to secure the parties’ financial future and is now faced with the prospect of having all savings and retirement accounts divided in half when the other party decides to leave the marriage.
To understand the issues a party will potentially face in a dissolution of marriage proceeding, it is helpful and instructive to break a divorce proceeding down into the following five (5) issues:
- Child Custody and Visitation
- Child Support
- Spousal Support / Alimony
- Property Division
- Attorneys’ Fees & Costs
Not all issues are applicable to every case. However, these issues are usually addressed in the order listed above. Child custody and visitation is usually addressed first because when minor children are involved they are typically the most important part of the case. Additionally, child support cannot be properly calculated until the visitation schedule has been resolved, and spousal support cannot be properly calculated until child support has been resolved. Property division is usually more complex and often takes more time, and a request for one party to pay all or a portion of the other party’s attorney’s fees is usually resolved near the end of the case.
The California Divorce Process
In California there is a six (6) month mandatory waiting period for a divorce to be final and for judgment to be entered. The waiting period begins not when the petition is filed, but when the respondent is served with a filed and court-endorsed copy of the summons and petition for dissolution of marriage.
It is easiest to think of the divorce process as a three (3) stage process.
STAGE ONE
One spouse files a petition for a dissolution of marriage. The other spouse must then be served with a court-endorsed copy of the summons and petition within 60 days. The spouse who is personally served with that petition then has 30 days to file a response. Regardless of how amicable or how conflicted a divorce may be, it is a legal process and it must be filed with the court. Once the petition has been filed and served, and the response has been served and filed, the case has been opened and is ready to proceed.
STAGE TWO
While the divorce is pending, temporary orders may be issued to address child custody and visitation issues, child support, spousal support, attorney’s fees, property restraint, and exclusive temporary use, possession, and control of property. Most often the issue of which party will remain in the family home will also need to be resolved. During this stage the orders issued are usually considered to be temporary orders to fashion a short-term resolution of issues to later be determined.
This is also the disclosure stage. Each spouse is required by law to fully and voluntarily disclose all of their income, expenses, assets and debts. The idea is that until the parties are both fully aware of all finances, they are not in a meaningful position to resolve these issues on a permanent basis.
STAGE THREE
In the final stage of the dissolution process, all disputes are resolved and the temporary orders are replaced with permanent orders. This can be done by agreement or through litigation. Resolutions made by agreement are memorialized in a marital settlement agreement that is filed with the court and incorporated into the parties’ judgment. However, if a settlement agreement cannot be reached between the parties, then with litigation the case is set for a mandatory court-supervised settlement conference and then for trial.
It is possible to resolve all of these issues without ever having to step into a courtroom. However, to do so requires a great deal of cooperation between the parties.
Call (530) 214-8700 today to schedule a consultation to learn more about the dissolution of marriage process and California’s community property laws so you are able to better understand your rights, responsibilities, and options moving forward.
Status Only Judgments
During a divorce proceeding, the parties may bifurcate or sever various issues and allow an early judgment on those issues. California law actually encourages parties in a dissolution action to bifurcate trial whenever it might expedite settlement or ease the resolution of other contested issues.
One of the issues that may be bifurcated is the marital status. A “status only” dissolution judgment allowing the parties to dissolve the marriage and return the parties’ marital status to single is favored by public policy and is appropriate where the parties want their marital status terminated but more time is needed to resolve the other issues in the proceeding such as dividing the community assets and/or debts. When a status only judgment is issued, the court will simply reserve jurisdiction to determine the other issues at a later date.
When requesting a status only judgment, the moving party must only show “slight evidence” in support of his or her request. The slight evidence is generally that reconciliation is not possible. Conversely, the opposing party’s burden to defeat bifurcation and the entry of a status only judgment is high as he or she must present “compelling reasons” not to bifurcate. There must be a showing of actual prejudice should the judgment be entered to prevent the court from moving forward with the entry of a status only judgment.
Although the status only judgment occurs earlier than resolution of the other issues, the jurisdictional requirements of residency must still be met and the parties’ preliminary declarations of disclosure must be exchanged prior to the entry of a status only judgment.
Importantly, most often the court will also place conditions on a status only judgment that will protect the non-moving party against losses that may occur. Some of these conditions are tax liability indemnification, continued health care coverage and indemnification, indemnification regarding probate homestead and family allowances, indemnification regarding retirement benefits, indemnification regarding social security benefits, and maintaining the non-moving party as beneficiary of nonprobate transfers.
If a status only judgment occurs and a party dies, the court retains jurisdiction to resolve the remaining issues. In contrast, if the parties do not have a status only judgment and a party dies during a dissolution proceeding, then the divorce case is dismissed and no other issues are resolved, i.e. the case is over and it is as if the party died while married. Furthermore, if a party wishes to marry a third party before the divorce proceeding has been fully resolved, a status only judgment will allow the parties to remarry.
Call today 214-8700 to schedule a consultation to learn more about status only judgments and if this option might be right for you.